[Federal Register: December 2, 2010 (Volume 75, Number 231)]
[Rules and Regulations]
[Page 75153-75156]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de10-3]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 21
[FWS-R9-MB-2008-0064; 91200-1231-9BPP]
RIN 1018-AV66
Migratory Bird Permits; Removal of Rusty Blackbird and Tamaulipas
(Mexican) Crow From the Depredation Order for Blackbirds, Cowbirds,
Grackles, Crows, and Magpies, and Other Changes to the Order
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations
governing control of depredating blackbirds, cowbirds, grackles, crows,
and magpies at 50 CFR 21.43. Because of long-term evidence of
population declines throughout much of their ranges, we remove the
Rusty Blackbird (Euphagus carolinus) and the Mexican (Tamaulipas) Crow
(Corvus imparatus) from the list of species that may be controlled
under the depredation order. With the effective date of this final
rule, a depredation permit is required to conduct control actions to
take either of these species. Also, nontoxic shot or bullets must be
used in most cases when a firearm is used to control any species listed
under the order. Finally, we add a requirement to report on control
actions taken under the order.
DATES: This regulation will be effective on January 3, 2011.
FOR FURTHER INFORMATION CONTACT: Dr. George T. Allen, Division of
Migratory Bird Management, U.S. Fish and Wildlife Service, Division of
Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop 4107,
Arlington, VA 22203-1610, Phone: (703) 358-1825.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Fish and Wildlife Service is the Federal agency delegated
the primary responsibility for managing migratory birds. This
delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16
U.S.C. 703 et seq.), which implements conventions with Great Britain
(for Canada), Mexico, Japan, and the Soviet Union (Russia). Part 21 of
title 50 of the Code of Federal Regulations covers migratory bird
permits. Subpart D deals specifically with the control of depredating
birds and presently includes eight depredation orders. A depredation
order is a regulation that allows the take of specific species of
migratory birds, at specific locations, and for specific purposes
without a depredation permit. The depredation order at 50 CFR 21.43 for
blackbirds, cowbirds, grackles, crows, and magpies allows take when
individuals of an included species are ``found committing or about to
commit depredations upon ornamental or shade trees, agricultural crops,
livestock, or wildlife, or when concentrated in such numbers and manner
as to constitute a health hazard or other nuisance.''
II. Species We Are Removing From the Depredation Order
We remove the Rusty Blackbird (Euphagus carolinus) and the Mexican
(Tamaulipas) Crow (Corvus imparatus) from the list of species that may
be controlled under the depredation order at 50 CFR 21.43. We remove
the Rusty Blackbird because of the long-term downward trend in its
population and its special conservation status. Because of the very
limited distribution of the Tamaulipas Crow in the United States and
its apparent rapid decline in numbers, we also remove this species from
the list of species that may be controlled under the depredation order.
After the effective date of this final rule (see DATES), any take
of either of these species will require a depredation permit (50 CFR
21.41) or other applicable MBTA permit. For background and current
information on these two species, see our proposed rule published
December 8, 2008 (73 FR 74447).
III. Additional Regulatory Changes
We also require the use of nontoxic ammunition for all take of
migratory birds under this depredation order to prevent toxicity
hazards to other wildlife. Further, we require reporting of control
actions taken under the order to give us data on the number of each
species taken each year to better monitor the effects of such take on
populations of those species. We expect the respondents to be mostly
State and Federal wildlife damage management personnel who undertake
blackbird control to protect crops. We also make the list of species to
which the depredation order applies more precise by listing each
species that may be controlled under the order.
IV. Comments on the Proposed Rule or the Draft Environmental Assessment
Issue: Opposition to the depredation order.
``WS [U.S.D.A. Wildlife Services] is notorious for indiscriminate
regimes that have resulted in the mortality of uncountable millions of
birds * * * and will continue to pose a real risk to the rusty
blackbird and Tamaulipas crow despite the proposed rule change. We
therefore request that 50 CFR Sec. 21.43 not only be narrowed in
scope, but withdrawn completely.''
``Currently, 50 CFR Sec. 21.43 allows for such a broad exemption
from the normal MBTA permitting process that some migratory birds are
afforded virtually no protections--especially given the enormous amount
of land conversion to agriculture and other uses.''
Response: Blackbird depredation on crops has been clearly
demonstrated. We will consider the effects of the depredation order as
we obtain information on reported take of birds under its authority. We
may make changes in the depredation order if we determine that it is
advisable to do so. However, we leave the order in place.
Issue: Nontoxic ammunition requirement.
``We are also convinced that FWS should finalize its proposal to
end the use of toxic shot for killing blackbirds, crows, and grackles,
and thus also commend that portion of the proposed change to 50 CFR
Sec. 21.43 concerning this point. Lead shot can have detrimental
effects on scavengers and the environment.''
``I am writing to express my support for * * * the requirement to
use nontoxic shot or bullets when a firearm is used to control any
species listed under the order.''
``WS recommends eliminating the non-toxic requirement for all
ammunition in all situations involving blackbirds unless: (1) Further
analysis by the FWS provides definitive evidence that lead ammunition
has impacted rusty blackbird populations and (2) evidence is provided
that lead ammunition used under the authority of the blackbird
depredation order has impacted other wildlife species.'' (USDA Wildlife
Services)
``Supporting documentation and analysis is needed for all claims of
lead toxicosis in songbirds. The use of unsupported claims of lead
toxicosis in songbirds should be discarded since there is not any
information from
[[Page 75154]]
necropsies supporting these statements.'' (USDA Wildlife Services)
``The requirement to use non-toxic shot to take crows for
depredation management is inconsistent with hunting regulations that
allow the use of lead shot to hunt crows. This would represent an
unequal application of the Migratory Bird Treaty Act. More lead shot
will likely be used to take crows while hunting than non-toxic shot to
take crows for depredation purposes.'' (Wildlife Services)
Response: ``Lead has been known for centuries to be a broad-
spectrum toxicant to humans and wildlife'' (The Wildlife Society
Position Statement on lead in ammunition and fishing tackle: http://
joomla.wildlife.org/documents/positionstatements/ Lead--final--
2009.pdf). Schulz et al. (2009) reported that ``Substantial information
exists demonstrating the effects of lead poisoning on mourning doves.''
Poisoning of many other species of birds by lead shot has been well
documented. We reasonably infer based on this information that lead is
toxic to rusty blackbirds and other bird species, which provides
sufficient justification to ban the use of lead shot in bird control
under this order.
The requirement for nontoxic shot in depredation control or in
hunting is already applied unevenly; nontoxic shot is not required for
all migratory bird hunting. However, we are concerned about lead
poisoning of migratory birds, and will seek to apply nontoxic shot
requirement more evenly by implementing the use of nontoxic shot as we
consider revisions to the current regulations.
In the proposed rule, we asserted no effects of lead shot from bird
control under the depredation order on any particular wildlife taxon.
However, wildlife professionals have recognized that lead shot and lead
in bullets are hazardous in the environment, and have recommended that
wildlife managers ``Advocate the replacement of lead-based ammunition
and fishing tackle with nontoxic products, while recognizing that
complete replacement may not be possible in specific circumstances''
(The Wildlife Society Final Position Statement on lead in ammunition
and fishing tackle).
We recognize that nontoxic shot is not required in all hunting in
locations in which control under this order might take place.
Nevertheless, we are taking a step toward eliminating the use of lead
shot and lead ammunition in wildlife damage control.
Issue: ``We also have concerns that the use of nontoxic shot would
limit the tools available to wildlife managers when conducting
blackbird control work. Currently, nontoxic shot is difficult to obtain
to nonexistent for air-rifles or .22 caliber rim fire rifles. Both may
be valuable tools in certain settings.'' (Mississippi Flyway Council)
Response: We acknowledge the concerns over availability of lead
projectiles for air-rifles and 22 caliber rimfire rifles. We added an
exemption for their use to this rule.
Issue: ``At the very least, FWS must require that agricultural
interests and WS always employ non-lethal methods before releasing
indiscriminate toxicants for birds.''
Response: We added this requirement to the depredation order.
Issue: Reporting on take under the depredation order.
``WS recommends the FWS continue to use the existing reporting
requirement already established to the greatest extent possible, and
that no additional requirements be enacted.'' (Wildlife Services)
``We have concerns about the paperwork requirements of this DEA. We
question if non-biologists will collect this data. As stated before,
Wildlife Services does the vast majority of blackbird control work in
the United States and is already collecting this data. We are concerned
that this DEA subjects our constituents to prosecution when the
potential for valuable data acquisition is questionable.'' (Mississippi
Flyway)
Response: This depredation order currently has no requirement for
reporting on control of depredating birds. We seek to bring this
regulation in line with all other migratory bird depredation orders--
which require reporting on control taken under their authorities.
Without reporting on control of species taken under this order, we have
no way to assess the effects of the activities it authorizes. Failure
to assess control measures and report on control activities will
potentially put any person conducting control under this depredation
order in violation of the MBTA.
Issue: ``We also ask that an additional provision be added
discouraging control of night-time blackbird roosts during the winter
months, as well into the month of March in northern regions, when Rusty
Blackbirds might be reasonably assumed to be in the roosts.''
Response: We defer to Wildlife Services and to State agencies to
determine whether or not rusty blackbirds are present in winter night-
time blackbird roosts. To ensure compliance with the MBTA, Wildlife
Services and State agencies should ensure that no rusty blackbirds are
present in a roost before conducting control actions. If Wildlife
Services or a State agency determine that rusty blackbirds are present,
the relevant agency would need to obtain a depredation permit from FWS
before conducting any control actions on that roost.
Issue: ``WS recommends the FWS develop a standardized method to
estimate the species composition of large mixed blackbird flocks to
enhance the reliability of the data collected and analyzed. Many times
light conditions in the field are very poor thereby increasing the
difficulty of species identification. Additionally, most citizens will
be unaware of the reporting requirements and are unable to distinguish
fish crows from American crows, common grackles from boat-tailed
grackles, etc., and this will result in inaccurate data being reported
to the FWS.'' (Wildlife Services)
Response: Though we recognize that there may be difficulties in
distinguishing species of blackbirds, grackles, and crows, we assume
that any person or agency undertaking control under this depredation
order will carefully identify the species involved. If the individual
or agency cannot do so, control under this depredation order should not
be undertaken. We are willing to work with Wildlife Services on a
method of estimating the species composition of large mixed blackbird
flocks as allowed by our budget and other tasks.
V. Required Determinations
Regulatory Planning and Review (Executive Order 12866)
The Office of Management and Budget (OMB) has determined that this
Final rule is not significant under Executive Order 12866. OMB bases
its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the
[[Page 75155]]
Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
(Pub. L. 104-121)), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act, and have determined that this action will not have a
significant economic impact on a substantial number of small entities
because neither the Rusty Blackbird nor the Tamaulipas Crow are species
that frequently cause depredation problems and, where they might do so,
we can issue depredation permits to alleviate the problems. There are
no costs associated with this regulations change except that persons
needing a depredation permit to take Rusty Blackbirds or Tamaulipas
Crows will have to pay the $100 application fee for a depredation
permit. We estimate the number of people likely to apply for such a
permit to be no more than 25 per year. We certify that because this
Final rule will not have a significant economic effect on a substantial
number of small entities, a regulatory flexibility analysis is not
required.
This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)).
a. This rule will not have an annual effect on the economy of $100
million or more.
b. This rule will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, Tribal, or local
government agencies; or geographic regions.
c. This rule will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. Actions
under the regulation will not affect small government activities in any
significant way.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It will not be a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. A takings implication assessment is
not required. This rule does not contain a provision for taking of
private property.
Federalism
This rule does not have sufficient Federalism effects to warrant
preparation of a Federalism assessment under Executive Order 13132. It
will not interfere with the ability of States to manage themselves or
their funds. No significant economic impacts are expected to result
from the change in the depredation order.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of E.O. 12988.
Paperwork Reduction Act
This rule contains new information collection requirements that
require approval by the Office of Management and Budget. The OMB has
approved these requirements and assigned OMB Control Number 1018-0146,
which expires November 30, 2013. We have addressed all comments
received on the proposed rule above in this preamble.
Any person or agency acting under this depredation order must
provide an annual report to the appropriate Regional Migratory Bird
Permit Office. You must provide your name, address, phone number, and
email address and the following information for each species taken:
(1) Species and number of birds taken;
(2) Months in which the birds were taken;
(3) State(s) and county(ies) in which the birds were taken; and
(4) General purpose for which the birds were taken (such as for
protection of agriculture, human health and safety, property, or
natural resources).
We collect this information so that we will be able to determine
how many birds of each species are taken each year and whether the
control actions are likely to affect the populations of those species.
Title: Depredation order for blackbirds, cowbirds, grackles, crows,
and magpies, 50 CFR 21.43.
Service Form Number(s): None.
Affected Public: State and Federal wildlife damage management
personnel; farmers; and individuals.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Annually.
Estimated Annual Number of Respondents: 250.
Estimated Total Annual Responses: 250.
Estimated Time per Response: 2 hours.
Estimated Total Annual Burden Hours: 500.
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The public may comment, at any
time, on the accuracy of the information collection requirements in
this rule and may submit comments to the Information Collection
Clearance Officer, Fish and Wildlife Service, Department of the
Interior, 1849 C Street, NW., (Mailstop 222-ARLSQ), Washington, DC
20240.
National Environmental Policy Act
We have completed a Final Environmental Assessment (FEA) on this
regulations change. The FEA is a part of the administrative record for
this rule. In accordance with the National Environmental Policy Act
(NEPA, 42 U.S.C. 4332(C)) and Part 516 of the U.S. Department of the
Interior Manual (516 DM), removal of the Rusty Blackbird and Tamaulipas
Crow from the depredation order and adding requirements for nontoxic
shot or bullets will not have a significant effect on the quality of
the human environment, nor will it involve unresolved conflicts
concerning alternative uses of available resources. There will be a
positive environmental effect because take of the two removed species
as a result of control actions will be significantly reduced or
eliminated.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
have evaluated potential effects on federally recognized Indian Tribes
and have determined that there are no potential effects. This rule will
apply to Tribes and any control actions that Tribes carry out on their
lands, but it will not
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interfere with the ability of Tribes to manage themselves or their
funds.
Energy Supply, Distribution, or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211
addressing regulations that significantly affect energy supply,
distribution, and use. E.O. 13211 requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
rule change will not be a significant regulatory action under E.O.
12866, nor will it significantly affect energy supplies, distribution,
or use. This action will not be a significant energy action and no
Statement of Energy Effects is required.
Compliance With Endangered Species Act Requirements
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this chapter'' (16
U.S.C. 1536(a)(1)). It further states that the Secretary must ``insure
that any action authorized, funded, or carried out * * * is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). We have concluded that
the regulation change will not affect listed species.
List of Subjects in 50 CFR Part 21
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
0
For the reasons stated in the preamble, we amend part 21 of subchapter
B, chapter I, title 50 of the Code of Federal Regulations, as follows.
PART 21--MIGRATORY BIRD PERMITS
0
1. The authority citation for part 21 continues to read as follows:
Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C.
703); Pub. L. 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Pub. L. 106-
108, 113 Stat. 1491, Note following 16 U.S.C. 703.
0
2. Revise Sec. 21.43 as follows:
Sec. 21.43 Depredation order for blackbirds, cowbirds, grackles,
crows, and magpies.
You do not need a Federal permit to control the species listed in
the table below if they are committing or about to commit depredations
on ornamental or shade trees, agricultural crops, livestock, or
wildlife, or when concentrated in such numbers and manner that they are
a health hazard or other nuisance:
----------------------------------------------------------------------------------------------------------------
Blackbirds Cowbirds Grackles Crows Magpies
----------------------------------------------------------------------------------------------------------------
Brewer's (Euphagus Bronzed (Molothrus Boat-tailed American (Corvus Black-billed (Pica
cyanocephalus). aeneus). (Quiscalus major). brachyrhynchos). hudsonia).
Red-winged (Agelaius phoeniceus) Brown-headed Common (Quiscalus Fish (Corvus Yellow-billed
(Molothrus ater). quiscula). ossifragus). (Pica nuttalli).
Yellow-headed (Xanthocephalus Shiny (Molothrus Great-tailed Northwestern ..................
xanthocephalus). bonariensis). (Quiscalus (Corvus caurinus).
mexicanus).
Greater Antillean
(Quiscalus niger).
----------------------------------------------------------------------------------------------------------------
(a) You must attempt to control depredation by species listed
under this depredation order using non-lethal methods before you may
use lethal control.
(b) In most cases, if you use a firearm to kill migratory birds
under the provisions of this section, you must use nontoxic shot or
nontoxic bullets to do so. See Sec. 20.21(j) of this chapter for a
listing of approved nontoxic shot types. However, this prohibition does
not apply if you use an air rifle, an air pistol, or a 22 caliber
rimfire firearm for control of depredating birds under this order.
(c) If you exercise any of the privileges granted by this section,
you must allow any Federal, State, tribal, or territorial wildlife law
enforcement officer unrestricted access at all reasonable times
(including during actual operations) over the premises on which you are
conducting the control. You must furnish the officer whatever
information he or she may require about your control operations.
(d) You may kill birds under this order only in a way that complies
with all State, tribal, or territorial laws or regulations. You must
have any State, tribal, or territorial permit required to conduct the
activity.
(e) You may not sell, or offer to sell, any bird, or any part
thereof, killed under this section, but you may possess, transport, and
otherwise dispose of the bird or its parts.
(f) Any person or agency acting under this depredation order must
provide to the appropriate Regional Migratory Bird Permit Office an
annual report for each species taken. You can find the addresses for
the Regional Migratory Bird Permit Offices in Sec. 2.2 of subchapter A
of this chapter. You must submit your report by January 31st of the
following year, and you must include the following information:
(1) Your name, address, phone number, and e-mail address;
(2) The species and number of birds taken;
(3) The months in which the birds were taken;
(4) The State(s) and county(ies) in which the birds were taken; and
(5) The general purpose for which the birds were taken (such as for
protection of agriculture, human health and safety, property, or
natural resources).
(g) The Office of Management and Budget has approved the
information collection requirements associated with this depredation
order and assigned OMB Control No. 1018-0146. We may not conduct or
sponsor and you are not required to respond to a collection of
information unless it displays a currently valid OMB control number.
You may send comments on the information collection requirements to the
Service's Information Collection Clearance Officer, U.S. Fish and
Wildlife Service, MS 222-ARLSQ, 1849 C Street, NW., Washington, DC
20240.
Dated: July 7, 2010.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-30288 Filed 12-1-10; 8:45 am]
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